DEC 5 — Much hue and cry has followed the introduction and passage of the National Security Council Bill 2015 in Parliament recently. According to various news reports, Pakatan Harapan MPs have condemned the Bill as a “death sentence” for democracy in Malaysia. Padang Serai MP N Surendran in particular has claimed that the Bill “gives arbitrary, extensive and dangerous new powers to the Prime Minister” and that there appears to be no precedent for this in our legislative history. The President of the Malaysian Bar, Steven Thiru, in a press release on 3 December 2015 stated that the basis for the new law is unclear, and that there are concerns on the supposed vast conferral of executive powers on a new statutory body, the National Security Council (“NSC”). The Concerned Lawyers for Justice (CL)) in a press statement dated 4 December 2015 boldly claims that the Bill has the tendency to usurp the powers and discretion of the Yang di-Pertuan Agong (YDPA) as the Supreme Head of the Federation and the armed forces under the Federal Constitution. Many prophets of doom, one example being Phil Robertson of Human Rights Watch, have appeared from nowhere to confidently assert that Malaysia is in the midst of transformation from a democracy to a dictatorship. These are scary predictions indeed. Given the loud manner in which they are expressed by the individuals and organisations making them, one could not be blamed for believing all the rhetoric.
But there is rhetoric, and then there is reality, and here at Young Professionals (YP), we strongly believe in upholding the latter in face of the former, so that truth prevails at all times. Thus for myself and my colleagues at YP, we proceeded to examine the NSC Bill carefully to examine whether claims of the sort made by various parties alluded to above were of substance. Our short conclusion is that while certain concerns regarding the Bill are valid, to dismiss the Bill outright as an affront to the Constitution and human rights, as has been done by the abovenamed organisations, would be foolhardy indeed. It is often said that things are not always what they appear, and the same goes for the National Security Council Bill 2015.
The justification for our conclusion follows. But at the outset it is proper to note that, despite what is stated by Mr Steven Thiru in his press release, the NSC is not a new body, and it traces its existence to the Federal Government, who set it up in 1971 after the National Operations Council, which was set up after the 1969 racial riots, was dissolved. Having existed all these years without any law enabling it, with the enactment of this Bill, it is finally clothed with statutory authority.
When we set out to examine the Bill, naturally the first thing we asked ourselves was whether similar legislation already exists on our statute book, and, contrary to what had been stated by the Padang Serai MP that there is no legislative precedent on this matter, a very similar and still validly subsisting Act of Parliament exists in relation to this Bill, namely the Public Order (Preservation) Act 1958 (“POPA”). Enacted by the Federal Legislative Council in the last days of its existence in 1958, the Act, then known as the Public Order (Preservation) Ordinance 1958, is, according to its long title, an Act relating to the maintenance and restoration of public order.
We found that key features of the National Security Council Bill 2015 are already part of this Act, in particular, the provision relating to security areas. While under section 18(1) of the Bill, the Prime Minister is able to declare an area as a security area, under section 3(1) of POPA, the Minister of Home Affairs may proclaim a state of danger to public order in any area limited to that proclamation. The effect of a proclamation under section 3 of POPA is not unlike a declaration under section 18 of the National Security Council Bill 2015 in that it enables security forces (in relation to a declaration made under the Bill) and police officers (in relation to a proclamation made under POPA) to be invested with powers to deal with threats to matters which these two laws seek to contain, namely national security under the Bill and public order under POPA. The powers granted are also similar. Some examples include provisions relating to exclusion of persons (section 22 of the Bill and section 8 of POPA), curfew (section 23 of the Bill and section 7 of POPA), control and closure of roads (section 24 of the Bill and section 4 of POPA), arresting without warrant (section 25 of the Bill and section 17 of POPA) and search and seizure (section 26 of the Bill and section 15 of POPA).
Of course there are some slight differences as well. For one, while the power of the Prime Minister to declare a security area under the National Security Council Bill 2015 is made collectively within the NSC, the power to proclaim under POPA is solely the prerogative of the Minister alone. There is also a difference in the duration of a declaration under the Bill, and a proclamation under POPA, being six months and one month respectively (section 18(3) of the Bill and section 3(3) of POPA). And while section 19 of the Bill allows the NSC to issue executive orders pursuant to a declaration being made, there is no such provision under POPA. We note that there has been suggestions that this mimics Article 150 of the Federal Constitution, where, pursuant to a declaration of emergency, the YDPA is empowered to promulgate ordinances as circumstances may require. Such concerns may be valid considering the wording of section 19(1) of the Bill, where executive orders may be issued “as the Council deems necessary” without specifying what the contents of such executive orders are save to state in subsection (2) that such an executive order may include deployment of security forces or any relevant government entities to a security area. Pursuant to Article 44 of the Federal Constitution, the power to legislate where there is no emergency declared under Article 150 vests with Parliament, and thus it is our considered opinion any executive order having legislative effect under this Bill would be void for this reason.
There are also other provisions of the Bill that do not share any similarity with POPA. For instance, the duties and powers of the Director of Operations in section 21 of the Bill. This provision enables the Director of Operations to deploy and co-ordinate security forces, establish unified commands, issue directives to government entities and do all things necessary or expedient for or in connection with the performance of his duties. This has no equivalent in POPA and in our opinion, reads much like the power the YDPA had under section 2 of the now repealed Emergency (Essential Powers) Act 1979. However, it is important to stress that while pursuant to section 2 of this Emergency Act, the YDPA had power to create offences and proscribe penalties, the scope of the powers given to the Director of Operations is limited only to his command of security forces in his security area and is thus administrative, rather than legislative, in nature. Nonetheless, I am of the opinion that this provision would be better enacted pursuant to Article 149 or 150 of the Constitution, given that there are real legal implications for any possible legislative characteristic such executive powers may have. Article 149 of the Constitution allows for any law to be enacted to contain subversion and public order, including for concerns relating to national security and was the constitutional basis for the existence of the now repealed Internal Security Act 1960. To address concerns regarding this provision in particular, I would suggest that the Bill include a preamble authorising its enactment under Article 149 of the Federal Constitution.
The Member of Parliament for Alor Star, Gooi Hsiao Leung of PKR, was quoted by online news portals as stating that security areas declared under the Bill would lead to suppression of assemblies. Interestingly, while the Bill does not contain any specific provision on assemblies, section 5 of POTA does. The section enacts that in any proclaimed area a police officer may by order prohibit the assembly of five or more persons and order the dispersal of such assemblies, even authorising the use of lethal force in this regard. This is in contrast to section 34 of the National Security Council Bill 2015, where use of force is limited to what is necessary in the circumstances, and specifically forbids the causing of death unless there are reasonable grounds for doing so. What constitutes reasonable grounds is spelt out in section 34(2) of the Bill.
Section 35 of the Bill allows for the dispensation of death inquiries or inquests in security areas where it is satisfied that such deaths have occurred due to operations undertaken by security forces and this is also rightly a concern. While the purpose of a death inquiry is to ascertain the cause of death and while logically, the cause of death would have been known under section 35, the scope of an inquiry would also include the circumstances behind the death that has occurred. It is submitted that this comes within the ambit of the right to life protected by Article 5(1) of the Constitution, with the definition of life having a broad meaning per His Lordship Gopal Sri Ram J in the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.
Also of note is also the power to make regulations under section 42 of the Bill, which proscribes a maximum jail term of five years and a fine of up to RM100,000.00 upon conviction for any offence made under the regulations. This contravenes section 27 of the Interpretation Acts 1948 and 1967, which limits any punishment that can be imposed by any regulations under any law to a jail term of six months and a fine of up to RM1,000.00 only.
The selection criteria of the Director General of National Security under section 15 of the Bill is also not defined, with a blank cheque given to the Prime Minister to appoint any public officer of the Government to the post on the recommendation of the Chief Secretary to the Government. This ignores relevant selection criteria such as experience with combating terrorism threats, etc, which must in our opinion be spelt out in the Bill as well, to ensure professionalism is maintained.
The composition of the National Security Council in section 6 of the Bill would do well to include representatives from the Council of Rulers, civil society groups and non-governmental organisations, a judicial officer as well as a representative of the Malaysian Bar to ensure concerns regarding constitutionality and human rights are addressed in any matters relating to national security. Section 5 of the Bill allows the NSC to control and coordinate and issue directives to government entities on operations and matters concerning national security but crucially, the term “national security” is not defined anywhere in the Bill. A comprehensive and limiting definition of national security, which takes into account constitutional protections on fundamental liberties, must be inserted in the Bill before this would work.
But all in all, save for the concerns raised above, I, for one, do believe that the National Security Bill 2015 is acceptable in principle and justified to combat threats to our national security. I fail to see any valid concerns raised behind the declaring of a security area, a key concept behind this Bill, when clearly a similar concept has existed in the Public Order (Preservation) Act 1958, which has remained in force in our law for 57 years with no history of the powers being abused at all. Had, for example, concerns about abuse in the banning of rallies such as Bersih been correct, the authorities could have, and indeed would have, resorted to section 5 of this Act in particular. This was not done at all and there are no indications it will be used as such in the future. The Minister in the Prime Minister’s Department Datuk Seri Shahidan Kassim, in defending the Bill in Parliament against critics, made a distinction between the declaring of a security area, and the declaration of an emergency, the latter of which is reserved for the YDPA under Article 150 of the Constitution. The difference between these declarations must be clearly defined if this defence is to be credible.
Recently, the British authorities have warned that destroying the Islamic State, the most serious terrorism threat of recent times, could take up to two years from now. The Thai Chief of Police is also quoted in recent news reports as saying that certain Syrian nationals have entered Thailand to commit acts of terror against Russian interests in Thailand, our neighbour to the north. Thus, we cannot afford to be lackadaisical in our response to contain these threats. Already we are without the Internal Security Act 1960, which was an effective bulwark against terrorism. As long as concerns regarding constitutionality and human rights in relation to the National Security Bill 2015 as raised above are addressed adequately by the Government, in my humble opinion, there is really no pressing need to withdraw the Bill.
* Faidhur Rahman Abdul Hadi is the chief executive of Young Professionals (YP), an organisation of professionals from across the divide concerned with the protection and promotion of the fundamental features of the Federal Constitution and social contract.
** This is the personal opinion of the writer or organisation and does not necessarily represent the views of Malay Mail Online.
